Taylor and Bell

[2018] FCCA 3124

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR & BELL [2018] FCCA 3124

Catchwords:
FAMILY LAW AND CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – Other parental responsibilities – Name of child – Particular cases

Applicant: AARON GREGORY TAYLOR

Respondent: KRISTEN LOUISE BELL

File Number: BRC 8168 of 2015

Judgment of: Judge Jarrett

Hearing date: 3 May 2018

Date of Last Submission: 30 May 2018

Delivered at: Brisbane

Delivered on: 1 November 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children’s Lawyer: Forest Glen Lawyers

ORDERS

1. Each of the applicant and the respondent henceforth exclusively use the name TAYLOR-BELL as the surname of the child BRAXTON TAYLOR-BELL born 31 March 2012 (until now known as BRAXTON TAYLOR), and not cause or permit any other person to use any names other than BRAXTON TAYLOR-BELL.

2. Otherwise all outstanding applications are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8168 of 2015

AARON GREGORY TAYLOR

Applicant

And

KRISTEN LOUISE BELL

Respondent

REASONS FOR JUDGMENT

1. On 3 May, 2018 I made parenting orders by consent between the parties that finalised their dispute in these proceedings concerning their child Braxton save and except for two issues.  Braxton is six years of age.  Those issues relate to Braxton’s surname and to an order sought by Braxton’s mother to the effect:

   That the child be encouraged by both parties to shower/bathe/toilet independently.  That the father or any other person be hereby prohibited from showering/bathing unclothed/nude with the child under any circumstances.

2. On 3 May, 2018 I made an order, with the parties’ consent, that they file and serve written submissions in support or opposing those orders with the mother to file hers no later than 4:00pm on 17 May, 2018 and the father no later than on 4:00pm on 31 May, 2018.  Braxton’s mother filed a summary of argument on 16 May, 2018 but Braxton’s father has not.

3. In support of her order concerning Braxton’s name, the only arguments that she makes in her written submissions that are of any relevance, that is to say, those that amount to submissions going to what is in Braxton’s best interests, are to the effect that Braxton “has always been known as and continues to be known as “Taylor-Bell” within the community, school and sporting activities” “Braxton identifies himself as “Taylor-Bell” & is aware that his “father” & “I” carry different names.  Therefore “I” feel a legal change would have only positive impact on “Braxton”.  Allowing “Braxton” & “I” to be identified to external parties as mother and son by name.”

4. The mother’s submissions do not take the form of an affidavit and so her submissions cannot be treated as evidence.  I have had regard to her affidavit filed on 23 April, 2018.  In that document, the only evidence that bears on Braxton’s surname appears in paragraph 44.  The only relevant evidence in paragraph 44 is that:

   “Braxton” is known to many as “Taylor-Bell” but yet legally remains “Taylor”.  For this reasons “I” request an alternation (sic).

5. It is plain from the mother’s material and in particular the affidavit to which I have just referred, that Braxton is known as “Taylor-Bell”.  It must also be apparent to Mr Taylor that that is the case.  There is nothing in the material to suggest that he has ever sought that the mother be restrained from using the surname “Taylor-Bell” for Braxton and in those circumstances, I am satisfied that it is likely to be in Braxton’s best interests for him to use the surname Taylor-Bell given that that is a name that he habitually uses at school, for sport and it is a name by which he is known in the community.  To make an order which requires Braxton to be known by some other name than that to which he is accustomed, is likely to be confusing for him.  Moreover a change of his surname at school and in his sporting teams is likely to be embarrassing for him.

6. However, I am not satisfied that I ought to make the order that the mother seeks with respect to the showering or bathing of Braxton.  I am not satisfied by the evidence (and in particular the evidence contained in the mother’s affidavit filed on 23 April, 2018), nor am I persuaded by her submissions that such an order is necessary. 

7. In those circumstances, the orders will be as set out at the commencement of these reasons.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 1 November, 2018.

Date: 1 November, 2018